R2003-0186 12-08-03 RESOLUTION NO. R2003-186
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A STORM SEWER OVERSIZING AGREEMENT WITH
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 19 AND FITE
INTEREST, LTD., ASSOCIATED WITH THE FITE ROAD STORM SEWER
PROJECT.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain development agreement by and between the City of
Pearland and Brazoria County Municipal Utility District No. 19 and Fite Interests, LTD., a
copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is
hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a storm sewer oversizing agreement with Brazoria County
Municipal Utility District No. 19 and Fire Interest, LTD., associated with the Fite Road Storm
Sewer Project.
PASSED, APPROVED and ADOPTED this the 8th dayof December' ,
A.D., 2003.
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
TO-'I~ID
MAYOR
Exhibit "A"
Resolution No. R2003-186
DEVELOPMENT AGREEMENT
This Agreement ("Agreement") is entered into as of this 8th day of December ,
2003, by and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), Fire
Interests, Ltd., a Texas limited partnership (hereinafter "Developer") and Brazoria
County Municipal Utility District No. 19 (hereinafter "MUD").
WHEREAS, the City consented to the creation of MUD on October 12, 1998; and
WHEREAS, the City plans to construct a storm sewer collection line (the "Storm Sewer
Line") beginning approximately 440 feet east of the intersection of Old Chocolate Bayou
Road and Fire Road as a 7'x5' box culvert and continuing easterly along the south line
of Fite Rd. with a 78" diameter storm sewer pipe into the Tranquility Lake Detention
Pond (such pond being located approximately 1,500 feet northeast of the intersection of
Fire Road and Old Chocolate Bayou Road) in order to provide storm water drainage for
the City's Cullen Road Extension project and to serve a 10-acre tract described by metes
and bounds attached as Exhibit "A" (the "Tract") within the MUD;
WHEREAS, the City would construct a 6'x5' storm sewer box culvert and a 72"
diameter storm sewer pipe to serve only the Cullen Road Extension project;
WHEREAS, the City has purchased and acquired 12.41 acre-feet of storm water
detention volume in the Tranquility Lake Detention Pond for use by property within
the City, including the Tract;
WHEREAS, the parties hereto seek to equitably apportion the costs of construction of
the Storm Sewer Line and the cost of acquisition of the above-described storm sewer
water detention volume.
WITNESSETH:
NOW THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it
is hereby agreed as follows:
The City will award a contract to construct the Storm Sewer Line.
Developer, on behalf of the MUD, shall be responsible for the additional
cost for increasing the size of the box culvert (950 linear feet) from 6' x 5'
to 7' x 5' and storm sewer pipe (350 linear feet) from 72" to 78" in diameter
to serve the Tract. The incremental cost for the box culvert is estimated to
be $40 per foot. The incremental cost for the storm sewer pipe is
estimated to be $20 per foot. Therefore, Developer's estimated
proportionate share of the construction cost is $45,000. The City will
include line item(s) in the bids for construction of the Storm Sewer Line
that show the actual incremental cost of the box culvert and storm sewer
pipe.
10908.2
Developer, on behalf of the MUD, shall be respohsible for 29.81% (3.7
acre-feet) of the purchase price of the storm water detention volume in the
Tranquility Lake Detention Pond. Based on such 29.81%, Developer's
share of the purchase price of storm water detention volume in the
Tranquility Lake Detention pond is $27,750.
Upon completion of the Storm Sewer Line, actual costs will be accounted
and Developer shall pay its proportionate share of the Storm Sewer Line,
as described in Section I above, and $27,750 for its share of the Tranquility
Lake detention volume purchase to City within 30 days of completion and
receipt of invoice by Developer from City. Such invoice shall include line
item bid and pay estimate documentation from the contractor evidencing
the actual incremental cost of the box culvert and storm sewer pipe
referenced in Section I above. The City shall also send a copy of such
invoice to the MUD, but Developer shall be responsible for payment to the
City. The MUD's reimbursement obligation to Developer for moneys paid
by Developer to City under this Agreement shall be set forth in a separate
reimbursement agreement between MUD and Developer.
The City shall own, operate and maintain the Storm Sewer Line at the
City's sole expense. The MUD shall have 76 cubic feet per second of
capacity in the Storm Sewer Line in order to serve the Tract. The City, as
the owner of the 12.41 acre-feet of storm water detention capacity in the
Tranquility Lake Detention Pond, shall take all actions necessary to
provide, defend and ensure that the MUD has 3.7 acre-feet of storm water
detention capacity in the Tranquility Lake Detention Pond in order to
serve the Tract. The MUD shall not be responsible for operation and
maintenance of the Tranquility Lake Detention Pond.
The City has entered into an agreement with R. West Development
Company to purchase 12.41 acre-feet of storm water detention volume in
the Tranquility Lake Detention Pond for use by property within the City,
including the Tract.
This Agreement may only be amended, modified, or supplemented by
written agreement signed by the City and MUD.
No assignment by a party hereto of any rights under or interests in this
Agreement will be binding on another party hereto without the written
consent of the party sought to be bound; and specifically but without
limitation moneys that may become due and moneys that are due may not
be assigned without such consent (except to the extent that the effect of
this restriction may be limited by law), and unless specifically stated to the
contrary in any written consent to an assignment no assignment will
release or discharge the assignor from any duty or responsibility under
this agreement.
10908.2 2
o
4
10.
11.
12.
13.
Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if
any provision of this agreement is prohibitive or invalid under applicable
law, such provision shall be ineffective to the extent of such provision or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Texas.
This Agreement and all obligations created hereunder shall be
performable in Brazoria County, Texas.
This Agreement is solely for the benefit of the City, Developer, and MUD
and no other party is intended to be a beneficiary hereof.
To accomplish execution of this agreement, it may be executed in multiple
counterparts.
DEVELOPER HEREBY RELEASES, ACQUITS, AND FOREVER
DISCHARGES THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES,
SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS,
DEMANDS, RIGHTS OR CAUSES OF ACTION OF WHATSOEVER
CHARACTER OR NATURE, INCLUDING REASONABLE ATTORNEYS'
FEES, ARISING FROM OR BY REASON OF ANY AND ALL BODILY OR
PERSONAL INJURIES, INCLUDING DEATH AND MENTAL
ANGUISH, DAMAGE TO PROPERTY AND THE CONSEQUENCES
THEREOF WHICH MAY BE SUSTAINED BY DEVELOPER, ITS HEIRS,
EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNS AS A
RESULT OF THE CONSTRUCTION OF THE IMPROVEMENTS
REFERENCED ABOVE, UNLESS CAUSED IN WHOLE OR IN PART BY
THE NEGLIGENE OF THE CITY, ITS OFFICERS, AGENTS,
EMPLOYEES, CONTRACTORS, SUCCESSORS, OR ASSIGNS.
DEVELOPER SHALL KEEP AND HOLD HARMLESS THE CITY, ITS
OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS
FROM ANY AND ALL COSTS, LIABILITY, DAMAGE OR EXPENSE OF
ANY NATURE AND HOWSOEVER CAUSED, INCLUDING
ATTORNEYS' FEES, CLAIMED OR RECOVERED BY ANYONE BY
REASON OF INJURY TO OR DEATH OF ANY PERSON OR PERSONS
OR DAMAGE TO OR DESTRUCTION OF PROPERTY CAUSED BY OR
RESULTING FROM THE NEGLIGENCE OF DEVELOPER, ITS AGENTS,
EMPLOYEES, CONTRACTORS, SUCCESSORS, OR ASSIGNS ARISING
IN CONNECTION WITH SUCH CONSTRUCTION BY CITY. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE
TERMINATION, EXPIRATION, OR CANCELLATION OF THIS
AGREEMENT.
10908.2 3
14.
The term of this Agreement shall be for 40 years from and after the date
shown in the first paragraph hereof.
[EXECUTION PAGES FOLLOW]
10908.2 4
In witness whereof, the parties have hereunto set their hands and signatures on the date
first above mentioned.
CITY OF PEARLAND,
A Texas municipal corporation
./Zfd _
Name: Bi 11 Ei sen
Title: Cit_v Manager
ATTEST:
/I- //dj'/- ///
Na~ YOU ,~Lorfin.o~
Tit~.' Cit,y Secretary
10908.2
ATTEST:
BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 19
109082
JOINDER ONLY
SECTION 1, 2, 3 AND 13:
WITH
RESPECT TO DEVELOPER'S OBLIGATIONS IN
FITE INTERESTS, LTD.,
a Texas limited partnership
By: FITE ROAD, LLC,
i;sT ~;I~; J ialm;ta;dt n1 ie;b ility~~
By:~~
Michael Pollack
Chief Executive Officer
10908.2
· 0/23/2003 89:05 7139523629
SIGNATURE H~ES
PAGE 83
· it~ad i~ ~h~ $~u~we~t ~/4 ~ the Nor~hweet
follows:
~I~ING a~ a found ~/~ inc~ iron pi~e in the ~outh line of :hat
w. ~i~uka, ~ recorded ~n F~Le NO. 97~00%030, O~fi~i~l Record,.
Reco~. ~ra~ria County, T~ae, ease ~ing ~he Northeast ccrner of
the ~aL~ 10 acre ~rac~. a~d ~he ~orshea~t cor~r O~ 5h~ aaid 2.5
di~tanc~ of
~NC~, North 89 deg. 53 ~in. ~2 ~c.
min. 59 eec. ~a~, 18.o~ fe~C; '
eof2~'~l~f~e~ ~asm.a found I 1/2 inc~ iro~ Dip~
· ~= a nO~%~ ~iS~mn~e O~ 660.00
BEGI~INO an~ con~atn&n 10 O0 ffee~ ~o ~he POI~ OF
JOINDER ONLY
SECTION 1, 2, 3 AND 13:
WITH
RESPECT TO DEVELOPER'S OBLIGATIONS IN
FITE INTERESTS, LTD.,
a Texas limited partnership
By:
FITE ROAD, LLC,
a Texas limited liability company
its general parmer
By:
Michael Pollack
' Chief Executive Officer
10908.2
•
ALLEN BOONE HUMPHRIES LLP
ATTORNEYS AT LAW
PHOENIX TOWER
3200 SOUTHWEST FREEWAY
SUITE 2600
HOUSTON, TEXAS 77027
TEL (713)860-6400
FAX (713)860-6401
abhllp.com
Direct Line: (713) 860-6424 Linda Sotirake
Direct Fax: (713) 860-6624 lsotirake@abhllp.com Legal Assistant
January 9, 2004
Mr. Alan Mueller
Deputy City Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Re: Brazoria County Municipal Utility District No. 19 (the "District")
Dear Alan:
Enclosed please find a fully executed Development Agreement for your files.
Should you have any questions, please feel free to call me at (713) 758-2622
Sincerely,
Linda F. Sotirake
Legal Assistant
Enclosure
17325